1. This is a case where the first accused is said to have escaped from lawful custody and accused Nos. 2 to 8 to have rescued him from such custody. The first accused is charged under Sections 147, 323 and 224, Indian Penal Code, and accused Nos. 2 to 8 under Sections 147, 323 and 225, Indian Penal Code. They have all been convicted by the Stationary Sub-Magistrate of Erode and that conviction has been upheld by the Sub-Divisional Magistrate of Erode. This revision is by all those accused.
2. The first point taken before me in revision is that the arrest of the first accused was not lawful and, therefore, the conviction under Sections 224 and 225 in the case of the first accussd and of the other accused respectively was not sustainable. What happened was, as found by the lower Courts, that P.W. Nos. 1 to 3 went to their cocoanut tope to see if any theft of toddy was going on as there had been frequent theft of toddy recently from that tope. They found the first accused, standing on the ground with a pot of toddy in his hands and two of his confederates climbing the trees, evidently for the purpose of bringing the toddy down. The three prosecution, witnesses were able to arrest only the man standing on the ground with the pot of toddy in his hands, that is, the first accused. It is argued before me that that arrest was illegal because Section 59 of the Criminal Procedure Code does not cover this case at all, for it is said that it could not be predicated that he was committing the offence of theft 'in the view of' the persons who arrested him. Section 59 says: 'Any private person may arrest any person who, in his view, commits a non-bailable and cognizable offence, or who has been proclaimed an offender etc.,' I think in this particular case the facts justify the inference that the first accused was committing theft of toddy in the view of the three persons who arrested him. Evidently these people were out for committing theft of toddy and the first accused was the man on the ground with the toddy taken from the trees. The toddy was, in my view, in the process of being taken or removed from the cocoamit tope, the first step in which would be to bring it down from the trees which the other two persons who were up the trees were trying to do, and the next step would be to carry the toddy awajr from the tope which the man standing on the ground was doing as he was collecting the toddy in a pot in his hands. I think, one should not put too strained a construction on the words 'in his view' and I think the prosecution witnesses were justified in arresting the first accused as one of the theives committing theft in their view. The case in Bolai De v. Emperor 35 C. 361 : 12 C.W.N. 367 : 7 Cr. L.J. 188 was cited as an authority to the contrary by the learned Vakil who appeared for the petitioners. That was a case where daffadar arrested a person carrying away in his bullock cart some newly cut plantain trees. The daffadar knew nothing about the plantain trees or about their ownership or where they were cut. All that he saw was the plantain trees being carried away in a cart. It was Only because the owner of the plantain garden from which those trees appeared to have been, cut was shouting that they were his and stolen by the cart-driver that the daffadar knew that they were stolen articles. In such a case as that I quite agree it is impossible to say that the daffadar who arrested the thief had seen the theft being committed. In fact his knowledge that a theft had been committed was entirely from the information he obtained from the other person the owner. That case, I do not think, applies here. Alawal v. Emperor 64 Ind. Cas. 371 : 23 Cr. L.J. 3 : 4 U.P.L.R. (L.) 21 : 19 P.L.R. 1922; A.I.R.(1922) (L.) 73 is also a case very similar to that, and there a man who was seen running away after committing a murder was arrested by persons who had not seen the murder being committed at all, but who apparently considered that he was the murderer as there was a hue and cry raised by the persons who were present at the scene of the offence. In this latter case, the learned Judges of the Lahore High Court following Bolai De v. Emperor 35 C. 361 : 12 C.W.N. 367 : 7 Cr. L.J. 188 held that Section 59 did not authorise the arrest of that person. These cases are clearly distinguishable from the present case, where I am of opinion from the facts proved that the first accused was a party to the theft and was actually in the process of committing theft when P.W. Nos. 1 to 3 him and arrested him.
3. It was next argued that, even if I hold that the original arrest was legal, the detention of the person before' he was rescued became illegal because when the arrested person was being taken to the temple Chavadi, the party met a beat constable on the way. It is suggested that the arrested person should have been handed over to this constable, and this not having been done, the second portion of Section 59 (1) was not complied with as there was unnecessary delay in handing him over to the Police. There is no evidence to show that this beat constable was in a position to take charge of the, arrested person. He was a beat and naturally would be looking after his beat duty and cannot be expected to take charge of an arrested offender; all that he would have done probably if an application had been made to him would have been to direct them to the Police Station or to the Chavadi where the man was actually taken.
4. It is next suggested that he should have been taken to the Police Station direct and not to the temple Chavadi. That objection was not taken in the lower Court and it is not very clear whether it was easier to have taken him to the temple Chavdi, than to the Police Station at that time of the night It is not possible to hold that failure to take him at once to the Police Station was such an illegality as would vitiate his detention in the Chavadi. If they had met the Village Magistrate he would certainly have advised them to take the man to the nearest Police Station and the man would have been so taken without any unnecessary delay.
5. These points have not been taken in the lower Court and, therefore, these questions have not been thrashed out on proper evidence.
6. It is lastly argued that the trial itself was vitiated as there was a misjoinder of charges in the case. I can see no misjoinder of charges at all. The first accused was charged with escaping from lawful custody and with the connected offences of rioting and hurt under Sections 147 and 323, Indian Penal Code. The other accused, Nos. 2 to 8, were charged with helping this man to escape from the lawful custody and also under Sections 147 and 323, Indian Penal Code. The whole thing was part of the same transaction and there is nothing wrong in having one trial against all the eight accused in the case. Now, the theft case was not tried with this case at all but was tried at a separate trial. The Magistrate, as he himself points out in paragraph 7 of his judgment, was quite alive to the fact that the offence of theft and the other offences were distinct offences which took place at different places and at different times and he accordingly split up the case into two cases and tried them as separate cases. Therefore, no objection on the score of misjoinder of charges or of accused can stand. That being so, there is no ground for interfering in revision with the conviction of the eight accused in Criminal Kevision Case No. 68.
7. It is then suggested that, as they have been released on bail, the sentence should be reduced to the period they have already suffered; but it 'must be noted that they got only the sentence of two months' rigorous imprisonment and a fine of Rs. 100 each. I do not consider that those sentences are in any way excessive or such as to call for interference by this Court. Criminal Revision Case No. 68 is, therefore, dismissed, the convictions and sentences of the accused being confirmed.
8. As regards Criminal Revision Case No. 83 of 1923 there cannot be any possibility of doubt that the first accused is guilty of the offence of theft of toddy. The sentence, a fine of Rs. 50, is by no means excessive. The conviction, and the sentence are confirmed and the revision petition is dismissed.